Duhaime's Law Dictionary


Desuetude Definition:

The exceptional doctrine of judicial abrogation of a criminal statute where there has been a long period of non-enforcement.

In the common English language, desuetude means the condition or state into which anything falls when one ceases to use or practise it. But in law, desuetude is a doctrine with teeth and pedigree. The Roman jurist Julian wrote:

"Statutes may be abrogated not only by a vote of the legislator, but also by desuetude with the tacit consent of all."1

In State v Donley, Justice Albright of the Supreme Court of Appeals of West Virginia adopted these words:

"Desuetude (is) lack of use; obsolescence through disuse. The doctrine holding that if a statute or treaty is left unenforced long enough, the courts will no longer regard it as having any legal effect even though it has not been repealed.

"Penal statutes may become void under the doctrine of desuetude if: (1) The statute proscribes only acts that are malum prohibitum and not malum in se; (2) There has been open, notorious and pervasive violation of the statute for a long period; and (3) There has been a conspicuous policy of nonenforcement of the statute.

"Thus, any evaluation must commence with an attempt to distinguish between crimes that are malum prohibitum and crimes that are malum in se.

"Crimes that are malum in se will not lose their criminal character through desuetude, but crimes that are malum prohibitum may.

"A crime that is malum in se is a crime or an act that is inherently immoral, such as murder, arson, or rape ... while a crime that is malum prohibitum is an act that is a crime merely because it is prohibited by statute, although the act itself is not necessarily immoral."

In Committee on Legal Ethics v Printz, these words appear:

"Desuetude is not, however, a judicial repeal provision that abrogates any criminal statute that has not been used in X years. Ultimately, we must judge each statute individually to determine if it is void due to desuetude.

"We find little analytical aid in merely applying, or refusing to apply, the rubric of desuetude. The problem must be approached in terms of that fundamental fairness owed to the particular defendant that is the heart of due process."

In an article published in the Harvard Law Review, desuetude was described as follows:

"Desuetude describes the doctrine by which a legislative enactment is judicially abrogated following a long period of intentional nonenforcement and notorious disregard."

Justice Robert Bork wrote, in The Tempting of America (1990):

"There is a problem with laws (which are not enforced). They are kept in the code books as precatory statements, affirmations of moral principle. It is quite arguable that this is an improper use of law, most particularly of criminal law, that statutes should not be on the books if no one intends to enforce them. It has been suggested that if anyone tried to enforce a law that had moldered in disuse for many years, the statute should be declared void by reason of desuetude or that the defendant should go free because the law had not provided fair warning."

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